ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

COURT FILE NO.: M068/12
DATE: 20130906

B E T W E E N:

HER MAJESTY THE QUEEN

D. Fisher & J. Strasberg, for the respondent

Respondent

- and -

CLINTON JUNIOR GAYLE

M. Sciarra, for the applicant

Applicant

HEARD: written submissions

Nordheimer J:

[1] This is an application by Clinton Junior Gayle under s. 745.6 of the Criminal Code. The applicant seeks an order allowing him to proceed to a hearing before a jury for a determination as to whether his period of parole ineligibility should be reduced. Pursuant to s. 745.61, the Chief Justice of the Superior Court of Justice designated me as the judge to review the application and determine whether a jury should be empanelled to consider it.

[2] On January 11, 1996, the applicant was convicted of the first degree murder of P.C. Todd Baylis and the attempted murder of P.C. Michele Leone, both members of the Toronto Police Service, that had occurred on June 16, 1994. The two uniformed officers arrived on patrol at 710 Trethewey Drive shortly after 9:54 in the evening. They encountered the applicant inside a door. Officer Baylis greeted the applicant but in response the applicant struck or punched the officer in the chest. A foot chase then ensued. The officers caught up to the applicant at a locked basement door. They attempted to apprehend the applicant but he violently resisted. Unbeknownst to either officer, the applicant was armed with a semi-automatic handgun. The applicant got away and the chase continued. The applicant exited a stairway to the outside. The officers were behind him with Officer Baylis in the lead. The applicant then fired two shots at the officers. One shot seriously wounded Officer Leone. The other shot struck and killed Officer Baylis. The bullet that struck and killed Officer Baylis was fired from a distance of not more than six inches. As found by the trial judge, Officer Baylis was, for all practical purposes, executed.

[3] The applicant received the mandatory sentence of life imprisonment with no eligibility for parole for a period of twenty-five years on the first degree murder count. The applicant was also sentenced by the trial judge, Watt J., to life imprisonment on the attempted murder count. The applicant appealed his conviction to the Court of Appeal which dismissed his appeal on April 27, 2001.

[4] This application is governed by s. 745.61(1). That section was amended in 2011. The threshold at the initial pre-screening stage was changed. Whereas the threshold had previously been whether “there is a reasonable prospect that the application will succeed”, the section now directs the pre-screening judge to consider:

…whether the applicant has shown, on a balance of probabilities, that there is a substantial likelihood that the application will succeed…

[5] Notwithstanding the change in the threshold, the criteria to be considered in determining whether there is a substantial likelihood that the application will succeed, remain the same. Those criteria are set out in s. 745.63:

(a) the character of the applicant;

(b) the applicant’s conduct while serving the sentence;

(c) the nature of the offence for which the applicant was convicted;

(d) any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and

(e) any other matters that the judge considers relevant in the circumstances.

[6] The applicant appears to accept that the effect of the change in the wording of the threshold has been to “raise the bar” that the applicant must clear in order for his application to proceed. Even if the applicant had not accepted that result, there could be no reasonable argument to the contrary. A “substantial” likelihood is clearly a more stringent standard than is a “reasonable prospect”.

[7] The change in the threshold has been the subject of consideration in a few cases. In R. v. McAuley, 2012 ONSC 3732, Rathushny J. made the following observation, with which I agree, at para. 14:

When the plain meaning of the words “reasonable prospect” under the old statutory test and the plain meaning of the words “substantial likelihood” under the new statutory test are considered, I think it clear the new test is more stringent and, therefore, imposes a higher threshold to be met than under the old test.

[8] The issue of the degree to which the standard has changed was considered in R. v. Poitras, [2012] O.J. No. 4271 (S.C.J.). In that case, Rutherford J. said, at para. 19:

So how much greater merit does an application with a "substantial likelihood" of success have than one with a "reasonable prospect" of success? To answer that question requires a semantic exercise in giving meaning to a somewhat odd coupling of the terms "substantial likelihood" with "balance of probabilities." Lawyers and judges deal with the latter term in civil trials. A balance of probabilities threshold is one in which it must be shown that something is more probable than not. So a faint hope applicant must now show that it is more probable than not that the application has a substantial likelihood of success. The Oxford Dictionary (Toronto: Oxford University Press, 1998) defines the word "substantial" as "of real importance, value, or validity." The word, "likelihood" is defined as a "probability" or a "promise of success." Thus, a faint hope applicant contends with a threshold showing of it being more probable than not that the application has a probability or promise of succeeding. That is, the likelihood is of substance; of real value; or valid. A case of some real merit, or some substantive merit, has a substantial likelihood of success.

[9] In Poitras, Rutherford J. also expressed some concern that the new language not result in the setting of a threshold that was too high. He said, at para. 21:

This suggests a real danger in setting the bar so high, under the new threshold, that a case which a jury might find meritorious may not be heard.

[10] As I have already indicated, I agree that the new threshold imposes a much more stringent test for these applications to proceed to a jury. The applicant must satisfy the pre-screening judge, on a balance of probabilities, exactly what the wording of the section requires: that his/her application has a substantial likelihood of succeeding. I will add on this point that I do not share Rutherford J.’s concern that if the bar is set so high a case might not be heard that a jury might find meritorious. It seems to me that in amending the section Parliament intended to ensure that only cases with real merit would proceed. To that end, Parliament decided that the threshold used by the pre-screening judge should be raised. In making that decision, Parliament must have considered the possibility that some cases that a particular jury might find meritorious would nonetheless not make it to that stage. Clearly, Parliament intended to restrict the process not just to the possible case but to the truly meritorious one.

[11] There is another aspect that arises from the change in the threshold at the pre-screening stage. Given that the threshold is a more stringent one, it seems to me that the pre-screening judge must take a harder and more critical look at the evidence as it relates to the criteria set out in s. 745.63. Rather than only having to be satisfied that there was a reasonable prospect that the application would succeed, as was the case in the past, now the pre-screening judge has to put him/herself in the position of the jury and determine whether, on the facts as currently known, there is a substantial likelihood of success. On this point, I agree with the conclusion in R. v. Morrison (2012), 2012 ABQB 619, 293 C.C.C. (3d) 416 (Alta. Q.B.) where Martin J. said, at para. 42:

In my view the substantial likelihood test calls for an increased consideration of evidence, including the most difficult and contentious issues, as it is precisely these issues that will likely steer a jury to their ultimate conclusion. As the new choice of words indicates, the substantial likelihood standard involves an augmented, more stringent threshold. The screening judge is now called upon to determine not just the possibility that a jury may decide in a certain way, but what that jury’s ultimate decision is likely to be. Given that the screening judge is now tasked with a more thorough analysis, it follows that a screening judge requires the latitude to consider the evidence in greater depth and to weigh the factors when assessing whether there is a substantial likelihood that a jury will decide the case in a certain manner. In my view this is not usurping the role of the jury but is simply performing the function of the screening judge under a substantial likelihood standard.

[12] In the end result, therefore, I consider the change to the threshold to be applied to have significantly raised the bar for such applications to proceed to a hearing before a jury and to require the pre-screening judge to more critically evaluate the evidence presented to determine whether a substantial likelihood of success is established.

[13] Turning then to the application itself, I will address each of the criteria set out in s. 745.63.

(a) character of the applicant

[14] The applicant was a month shy of his twenty-sixth birthday at the time of the offence. He is now forty-five years old. He has been in custody for more than nineteen years. His background was aptly described by the trial judge in his sentencing decision on the attempted murder charge[^1] in the following terms, at paras. 13-19:

13 Clinton Gayle arrived in Canada in 1977 at age nine (9). For the first thirteen (13) or fourteen (14) years of his life in this country, he lived with his mother in the Trethewey complex where the tragic events of June 16, 1994 took place. He has had no contact with his father who apparently remains a resident of Jamaica.

14 In 1993, the accused's mother, who has always been gainfully employed and a contributing member of the community, purchased a residence in a suburb of Metropolitan Toronto. She wished to leave behind her life at the Trethewey complex. Clinton Gayle would appear more than a little less willing to sever his connections with the complex. He returned to it, it would seem, with some measure of frequency. He sojourned at various locations rather than remain a constant and permanent resident of his mother's home.

2. Education and Employment History

15 Mr. Gayle remained in the school system until his voluntary withdrawal from grade XII at Bathurst Heights Collegiate. There is no suggestion that he has undertaken, for that matter is the least bit interested in further education or skills training.

16 The relationship between Clinton Gayle and gainful employment is casual, if not unfamiliar. The longest period of employment reported is of one year's duration at a Petro-Canada gas station near the Trethewey complex. To Clinton Gayle gainful, lawful employment would seem anathema.

3. Previous Criminal Convictions

17 Since his premature departure from the school system, Mr. Gayle has accumulated, on seven (7) prior occasions, no fewer than fourteen (14) criminal convictions. The convictions recorded include an offence of dishonesty, several narcotics offences, three (3) convictions of escaping lawful custody, two (2) convictions of possession of an unregistered restricted weapon and a single conviction of assault with intent to resist arrest.

18 The prior criminal convictions of Clinton Gayle, as well his sworn testimony at trial, reveal him to be a gun-toting crack dealer who displays a brazen contempt for the law and those who enforce it.

19 The attitude of Mr. Gayle, which plainly emerges from a review of his previously-recorded criminal convictions, is replicated by the entire absence of remorse which he displays for having snuffed out the life of one police officer and nearly duplicated the feat in relation to another. It is one thing to maintain one's innocence, consonant with testimony given at trial. It is another to be so devoid of humanity as to be incapable of expressing remorse for the egregious results of one’s conduct.

[15] There is some evidence that there has been a change in the applicant’s attitude and his general approach to life since he has been incarcerated. He has successfully completed a number of programmes. He has progressed from being in Millhaven Institution (maximum security) to Collins Bay Institution (medium security) to his current location, Bath Institution (lower-medium security). The applicant has been employed in various capacities at these institutions including as a food server, metal shop worker, in the library and as a computer tutor. He completed the requirements for his high school credits and received a diploma in November 2009.

[16] The applicant has generally positive reviews from staff members at these institutions. He has been described as an “example” for other inmates and as a “model” student. He is said to have counselled other inmates against violence and to have intervened in various instances to quell potential problems.

[17] The applicant has been assessed three times by psychologists during his incarceration. One assessment was conducted in 2003, another in 2009 and the most recent in 2012.[^2] In the 2003 assessment, the following findings were made:

(a) The applicant does not meet the criteria for diagnosis as a psychopath;

(b) The applicant scored in the low-moderate range for general recidivism;

(c) The applicant scored in the moderate range for violent recidivism.

[18] In the 2009 assessment, the applicant’s scores remained unchanged at low-moderate and moderate. The author of that report noted that the applicant showed no signs of anger or hostility. The author also observed that the applicant recognized “the importance of changing his attitudes and beliefs to positively impact his future”.

[19] In the 2012 assessment, the applicant’s score for violent recidivism remained at moderate. His score for general recidivism dropped to low. The author of the report “cautiously” supported a transfer to a minimum security institution although that transfer has not happened.

[20] It appears that the applicant has consistently displayed a positive attitude toward institutional staff during his incarceration. A number of complementary comments were made by staff members regarding the applicant.

(b) the applicant’s conduct while serving the sentence

[21] As I have already noted, the applicant has moved from a maximum security institution to medium security institutions. He is desirous of moving to a minimum security institution but that desire has yet to be realized. There is some suggestion in the material that the applicant has shown frustration at the fact that he has not been able to move to a minimum security institution. Given the nature of the offences for which he is incarcerated, the fact that he is still subject to a deportation order and his overall history while incarcerated, it is not surprising that the correctional authorities have not as yet acceded to the applicant’s request to move to a minimum security institution.

[22] On that latter point, the applicant’s history while incarcerated is not without its negatives. During his time at Millhaven Institution, the applicant attracted nineteen institutional convictions, nine of which were considered serious in nature. Some of these offences included the possession of makeshift weapons. At the same time, it should be noted that none of the offences were considered by the correctional authorities to be violent offences.

[23] Similarly, the applicant attracted another six institutional offences at Collins Bay. All of these offences related to marijuana and the applicant’s apparent habit of consuming it. That said, since 2008, the applicant has not attracted any further institutional offences.

[24] The respondent counters the suggestion that the applicant is a model inmate by suggesting that the truth of the matter is that the applicant is engaged in an elaborate ruse to portray himself as someone that he is not. The respondent submits that the applicant puts on an outside persona of politeness and co-operation with staff in order to mask his true feelings and actions. In this regard, the respondent points to evidence in the material that suggests that the applicant has been involved in smuggling within the institutions, been a member of a drug subculture and been the operator of a “black market” for the distribution of contraband.

[25] There is some substance to the respondent’s submissions. The records show that staff members were providing complementary comments regarding the applicant at the very same time as the applicant accumulated institutional offences including ones involving the possession of weapons. In January 2000, the authorities obtained authorization to intercept the applicant’s telephone calls because of concerns that he was involved in just such activities. They obtained a second authorization that ended in January 2002. It is evident that there were ongoing concerns by the authorities that the applicant was involved with drugs and their distribution within the institutions. In particular, it is noted in the Parole Eligibility Report that during his time at Collins Bay Institution, there were suspicions that the applicant was involved in the drug subculture. In June 2010, security officers noted that the applicant had close associations with members of the Hell’s Angels and another gang, the Crack Down Posse. These concerns regarding possible gang associations have continued while the applicant has been at Bath Institution. Nothing has ever been sufficiently proven in this regard, however.

[26] The respondent also points to another factor that may explain the applicant’s apparent positive impression within the institutions and the leadership role that he appears to fill as regards other inmates. It appears, unfortunately, that an inmate convicted of killing a police officer is held in high regard within the inmate population, or at least within certain significant segments of that population. The applicant is also someone who is quite able to take care of himself. These two factors combined, the respondent suggests, are as much an explanation for the “position” that the applicant appears to have within the institutions as is any suggestion that the applicant has become a “leader” or “model prisoner”. The applicant himself commented on his “stature” with the other inmates in his 2003 psychological assessment noting, among other things, that no one will confront him.

(c) the nature of the offence for which the applicant was convicted

[27] As noted at the outset, the applicant shot and killed one police officer and seriously wounded another. His killing of Officer Baylis was described by the trial judge as an execution. These events occurred for no apparent reason and without any apparent provocation.

[28] It is always possible of course to think of a fact situation that would be worse than the fact situation that one is currently confronted with. However, it would be difficult to conceive of a realistic fact situation, the impact of which would surpass the horror arising from the shooting of two police officers, one fatally, while on routine patrol on a June evening in an apartment complex in the City of Toronto. The evidence is that Officer Baylis never took out his gun and that Officer Leone only did after the applicant had first fired his gun. It is easy to see why in those circumstances the applicant’s claim that he was acting in self-defence found no favour with the jury.

[29] There is a natural reluctance to rate the severity of the circumstances of an offence when that offence is murder. It is hard to put the loss of a life on a scale and thus suggest that one life lost is somehow more troubling or more shocking or more horrible than another. Nonetheless, to the degree that one could permit the consideration of such a scale, the loss here and the circumstances giving rise to that loss would have to be at the most severe end of that scale.

[30] The result of that conclusion, it seems to me, is that an even greater degree of change would need to be seen in the perpetrator of the offence to justify a departure from the normal terms of the legislated sentence. Jurors, being ordinary citizens, would presumably have that greater expectation and would adopt it in reaching their verdict on the application.

(d) any information provided by a victim

[31] Victim impact statements from the father, mother, brother and former fiancé of Todd Bayliss along with a victim impact statement from Mike Leone were filed by the respondent on this application. They all strenuously oppose this application. In the circumstances, it would be surprising if they did not.

[32] Any murder will have an incredible and everlasting impact on the family and friends of the deceased as the contents of the victim impact statements make clear. The death of a police officer in the line of duty not only carries that same impact but it additionally has a much broader impact for the greater community. The reality of such an occurrence expands the circle of victims exponentially. The enormity of that impact is another factor that the jury would consider when reviewing this application. The pre-screening judge must similarly assess the application in light of that reality.

(e) any other matters that the judge considers relevant in the circumstances

[33] There are two other aspects to this matter that I consider relevant. One is the issue of remorse. The respondent asserts that the applicant has not, to this day, truly acknowledged his actions. Rather, the applicant maintains his assertion that he acted in self-defence and has done so throughout his incarceration including in his most recent psychological assessment in 2012.

[34] As I held in R. v. Phillips, [2011] O.J. No. 1687 (S.C.J.)[^3] an applicant’s lack of remorse is a factor that the pre-screening judge can consider in his or her review of the application. The pre-screening judge is, after all, mandated to consider the very same matters that a jury may ultimately also have to consider. It may be that some of the criteria will be of greater or lesser moment at the pre-screening stage. Some of them may be amplified at the hearing of the application, if it proceeds that far. Nonetheless, they are still matters that must be taken into account at this stage.

[35] The applicant counters this by saying that there is evidence of remorse in the record that is before me. Indeed, there are entries in various reports in which the applicant has said that he is remorseful for what occurred. Indeed, in the Parole Eligibility Report the author notes that the applicant “expressed strong feelings of empathy for the families affected by his crimes and stated that his greatest wish would be that this offence had never occurred”. It is a claim, however, that contrasts sharply with his maintained position of self-defence. If the applicant is actually remorseful for his actions, it does not appear that the remorse is absolute or unqualified. Put another way, while the applicant may be remorseful for the consequences of his actions, it is not clear that the applicant accepts responsibility for his actions. It is therefore far from clear that the rehabilitation of the applicant has progressed to a such a degree that it would favour a reduction in the period of parole ineligibility.

[36] The other issue is the outstanding order for deportation. The applicant says that the jury could rely on this fact in a very practical (some might say crass) way. If the applicant’s parole eligibility is reduced, his parole may come earlier and he then becomes available for deportation at an earlier date. In essence, the argument is that the earlier the applicant is deported, then the earlier the applicant is no longer this country’s problem. It is very much an “ends justify the means” form of argument.

[37] The applicant correctly points out that the impact of deportation is something that various appellate courts have said that a sentencing judge can take into account in determining what is a fit and proper sentence. The most recent pronouncement on this issue comes from the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100 where the court held that immigration issues were a relevant consideration in fashioning a sentence. The court reiterated however that those considerations could not result in a sentence that was not otherwise appropriate. As Wagner J. said, at para. 14:

The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] In my view, the reasoning that leads to a consideration of immigration issues, including deportation, in the sentencing context does not transfer well into the context of an application of the type here. In eliminating capital punishment in this country, Parliament determined that the appropriate sentence for first degree murder is life in prison with no possibility for parole for a period of twenty-five years. As part of that determination, Parliament provided a narrow window of opportunity to reduce that parole ineligibility period in special cases where an applicant could demonstrate that he or she was a very different person from the one that committed the offence. In one sense, it provides an incentive for those persons to achieve a level of rehabilitation that may exceed even the most realistic expectations.

[39] There is nothing in the factors set out in s. s. 745.63 that logically or rationally suggests that deportation should be a factor that would lead to a reduction in the period of parole ineligibility. As tempting as it may be from a pragmatic point of view to want to entertain the possibility of removing someone from our country who has been convicted of murder at the earliest opportunity, that is not a result that is consistent with what otherwise appears to be the objective of the narrow exception provided for in s. 745.6 of the Criminal Code. To conclude otherwise would be to create the very sort of separate system that Wagner J. cautioned against in Pham at para. 16:

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

Conclusion

[40] There appear on the surface to be a number of positives in the applicant’s conduct during the time that he has been incarcerated. That said, there are sufficient qualifications and uncertainties regarding the degree of that positive change, and the genuineness of it, as to justify considerable caution in coming to any conclusion as to where the truth of the matter actually lies. It is noteworthy that the applicant’s score for violent recidivism has remained unchanged at moderate during all of this time. Considering his record overall, the applicant is not the “model prisoner” whose conduct and attitude can be demonstrated to have changed so much from what it was at the time of the offence that I could be satisfied that there is a “substantial likelihood” that twelve jurors would conclude that a sufficient transformation has occurred that would warrant a reduction in the mandatory twenty-five year period of parole ineligibility. The record before me might give rise to a possibility that such a result could occur but that is no longer the test. Something much more than a mere possibility must be present.

[41] In addition, the applicant was found guilty of a brutal and horrific crime. Given that reality and the uncertainties regarding the applicant’s attitude and conduct while incarcerated, I do not believe that twelve jurors would ever, even in the exercise of the very broad discretion vested in them[^4], come to the level of comfort in this case that they would decide that the applicant should be given the opportunity to apply for early parole.

[42] The application is dismissed. Given the circumstances of this case, and the stage at which the applicant is in terms of serving his sentence, pursuant to s. 745.61(3)(b), I order that the applicant may not make another application under subsection 745.6(1).

NORDHEIMER J

Released: September 6, 2013

Footnotes

[^1]: R. v. Gayle, [1996] O.J. No. 3020 (Gen. Div.)
[^2]: I note that in his initial assessment at the Millhaven Assessment Unit, the applicant was identified as a high risk. His individual ratings were: institutional adjustment – moderate; escape risk – high; public safety – high.
[^3]: aff’d. 2012 ONCA 54, [2012] O.J. No. 652 (C.A.)
[^4]: see R. v. Swietlinski, [1994] 3 S.C.R. 481, 1994 71 (SCC)